A different kind of legal insanity

Supreme Court orders have not successfully deterred lower courts from sending rape cases for mediation or settlement. Perhaps it’s time to try something new

The definition of insanity is doing the same thing over and over again, but expecting different results

On July 11th, the Madras High Court overturned its controversial order to send a convicted rapist to mediate with his victim. The original order had been widely condemned by the legal community, political commentators and citizens on social media. It was only after the Supreme Court had decreed that the settlement of a rape case would be a “spectacular error” in a separate matter that the Madras High Court recalled its order. It is extremely disturbing that the Madras High Court required an extremely publicised Supreme Court decision in order to reverse its position given that the Supreme Court had already declared rape to be a non-compoundable offence with no possibility for compromise in a previous case. In that case the Supreme Court had also observed how lower courts have repeatedly defied Supreme Court decisions in taking a soft approach to sentencing in rape cases. Given these repeated transgressions by courts it is time that another measure is used to bring them into line. This measure could also be used to address the fact that many rape victims also face pressure to marry their rapists outside of court halls.

In 2013, a case reached a 3 judge bench of the Supreme Court where two men convicted of gang rape requested that their sentence be reduced below the minimum of 10 years rigorous imprisonment. This was the only issue to be decided by the Court and given that lower courts had repeatedly transgressed in sentencing rape cases, it took efforts to set out its stance on the handling of rape cases. It examined the provisions of the IPC and quoted extensively from its previous judgments. It held that neither the fact that the rape had occurred a while ago and the victim was now happily married nor the fact that the victim had agreed to a compromise would be sufficient to commute the sentence. Commenting that this was “yet another opportunity” to inform subordinate courts on the correct handling of rape cases, the court laid down the following position on the compromising of rape offences:

Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim[s], it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.

However, despite this clear language and reasoning the Madras High Court persistently pursued compromises as an option in rape cases, even where the victim was a minor. In his order, Justice Devadass proudly boasted of the “happy conclusion” of another case involving the rape of a minor that he had sent for mediation (the victim married her rapist). He went on to declare that in “the facts and circumstances, the case before us is a fit case for attempting compromise between the parties. ‘Mediation’ mode is best suited to them.” The order was littered with statements that seemed to re-enforce many patriarchal norms tying the dignity of women to their marital status and thus attracted the attention of news outlets across the country.

As a consequence, the Supreme Court took the first opportunity it had to reiterate its stance on the settlement of rape cases and used some of its strongest language yet. Also referring to its earlier 2013 judgment, the Court stated that:

The conception of compromise, under no circumstances, can be thought of in a case of rape or attempt to rape…Any kind of liberal approach or a thought of mediation in this regard is thoroughly and completely sans legal permissibility…We say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error

While it is possible that such clear and forceful language might finally dissuade courts from pursuing mediation in rape cases, the precedent is not promising. Even if it is successful, many parts of society still feel that settlement or marriage is a suitable solution to save the ‘dignity’ of the victim (even though this would place the victim into a relationship where the perpetrator could repeatedly legally rape her with impunity). Such views have been expressed by government authorities like the Chairpersons of State Commissions for Women or Panchayats.

Perhaps the very act of pressuring a rape victim to marry or compromise with the perpetrator(s) should be made a criminal offence in itself. This would help protect rape victims, who have already suffered enough trauma, from further harassment from society. Given that there would be many similarities to dowry harassment cases, the extensive case law for that offence could prove beneficial. Including a provision that a conviction would qualify as one of “moral turpitude” would also restrain government officials fearful of disqualification or removal. Finally, such an offence would also send the clearest signal yet to courts; a judge would be far more unlikely to send rape cases for mediation or marriage if it constituted a criminal act and counted as grounds for disqualification.

Madhav Chandavarkar is a Research Analyst at the Takshashila Institution. His Twitter handle is @MadChaP88

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